Siemek v R - [2017] NSWCCA 18 - NSWCCA 2017 case summary — Zoe

NSWNSWCCA

Siemek v R

[2017] NSWCCA 18

Court of Criminal Appeal (NSW)|2017-02-02|Before: Basten JA, Johnson J, Button J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2017-02-02

Before

Basten JA, Johnson J, Button J

Catchwords

[2007] NSWCA 2 Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25 Porter v R [2008] NSWCCA 145 R v Dinh (2010) 199 A Crim R 573 [2010] NSWCCA 74

Source

Original judgment source is linked above.

Catchwords

[2007] NSWCA 2 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Porter v R [2008] NSWCCA 145 R v Dinh (2010) 199 A Crim R 573 [2010] NSWCCA 74

Judgment (12 paragraphs)

[1]

Solicitors: Swifte Law (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/8613 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 4 March 2016 Before: Hock DCJ File Number(s): 2015/8613

[2]

Judgment

BASTEN JA: Leave to appeal against the sentences imposed on the applicant in the District Court should be refused for the reasons given by Johnson J.
JOHNSON J: The Applicant, Justin Karl Siemek, seeks leave to appeal against sentences imposed by Hock DCJ at the Newcastle District Court on 4 March 2016 for offences committed by the Applicant on 10 January 2015.
Following a plea of guilty to an offence of recklessly causing grievous bodily harm under s 35(2)(a) Crimes Act 1900 (NSW), the Applicant was sentenced to imprisonment for three years and nine months with a non-parole period of two years commencing on 10 July 2015. The maximum penalty for an offence under s 35(2) is imprisonment for 10 years with a standard non-parole period of four years applying to the offence.

[4]

Factual Background to the Offences Committed on 10 January 2015 The Applicant's Prior History

Some background is required to place the subject offences into context and to assist an understanding of the submissions in this Court.
As at 10 January 2015, the Applicant was 36 years old. He had been married to Linda Siemek and there were four sons from their relationship. They had been separated since about 2008.
Between about 2012 and 2014, the Applicant was in a relationship with Kylie Ryan.
The Applicant has a longstanding history of bipolar affective disorder and substance abuse disorder.
The Applicant has a history of domestic violence offences committed against Ms Siemek or Ms Ryan. These offences had been dealt with by way of non-custodial orders in 2008 (on three separate occasions), 2009 and 2012. On each occasion, the bond was subject to conditions that the Applicant comply with his prescribed medication regime and not consume illegal drugs.
In 2013, the Applicant was sentenced to imprisonment for nine months with a six-month non-parole period, for offences of assault occasioning actual bodily harm and contravening an apprehended domestic violence order.
On 15 August 2013, the Applicant was sentenced at the Toronto Local Court for offences of common assault (involving domestic violence), contravening an apprehended domestic violence order and stalking or intimidation with intent to cause fear, in relation to which he was sentenced to imprisonment for 12 months with a non-parole period of seven months.
On 18 December 2014, the Applicant was convicted in his absence at the Newcastle Local Court of an offence of common assault (involving domestic violence against Ms Ryan) which had occurred on 15 August 2014. In the course of an argument with Ms Ryan, the Applicant had grabbed her hair and pulled her head down and pushed her backwards onto a lounge. Ms Ryan complained to the police and the Applicant later surrendered himself to the police station. He was released on bail but, as is clear, he did not appear at Court on 18 December 2014. The presiding Magistrate directed that a warrant issue under s 25(2) Crimes (Sentencing Procedure) Act 1999 (NSW) for the arrest of the Applicant to be brought before a court for sentencing.
The Applicant was arrested on the warrant on 22 December 2014 and was brought before the Newcastle Local Court on 5 January 2015, on which occasion the Court imposed a suspended sentence of imprisonment for 12 months upon the Applicant entering into a bond to be of good behaviour and to comply with other conditions. The Offences on 10 January 2015
Following his release from custody on 5 January 2015 (after the suspended sentence was imposed), the Applicant spent time at his former wife's house at Cardiff South.
As at 10 January 2015, the Applicant was subject to an enforceable apprehended domestic violence order for the protection of his former wife, Ms Siemek, with that order including mandatory conditions as contained in s 36 Crimes (Domestic and Personal Violence) Act 2007 which provides as follows: "36 Prohibitions taken to be specified in every apprehended violence order Every apprehended violence order is taken to specify that the defendant is prohibited from doing any of the following: (a) assaulting or threatening the protected person or a person with whom the protected person has a domestic relationship, (b) stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship, (c) intentionally or recklessly destroying or damaging any property that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship."
In addition, the Applicant was subject to the suspended sentence which had been imposed just five days before for the August 2014 assault upon Ms Ryan.
Late on the evening of 9 January 2015, the Applicant went to Ms Siemek's house. Ms Siemek was at home on her own.
Ms Siemek contacted Ms Ryan to tell her that the Applicant wished to see her. Ms Ryan arrived at the Cardiff South premises in the early hours of 10 January 2015. Ms Ryan and the Applicant had a discussion in which he claimed that Ms Siemek had taken some of his cannabis. Ms Ryan took the Applicant to a service station at Warners Bay where some items were purchased before Ms Ryan dropped the Applicant back at Ms Siemek's house. Ms Ryan then left.
At about 2.00 am on 10 January 2015, the Applicant demanded of his former wife, "Where's my iPod, where is my weed?". He then grabbed her by the hair and dragged her out of the laundry window and around to the front veranda of the premises. As he dragged his former wife, he was punching her to the face. During this journey, Ms Siemek's back struck the railing on the veranda causing her pain.
Once near the front veranda, Ms Siemek was lying on her side whilst the Applicant maintained his hold on her hair. The Applicant jumped and stomped on her head a number of times saying words to the effect, "You're going to die cunt, where's my weed?". The Applicant then jumped on Ms Siemek's chest and tried to strike her with a metallic ornament.
During the assault, the Applicant said, "You're going to call the cops about this aren't you?". Ms Siemek tried to placate the Applicant saying words to the effect of, "No, I'm not going to call the cops. Let's just find that weed and then we'll both have a smoke". The Applicant grabbed Ms Siemek once again and dragged her face first down the concrete steps, before stepping on her face and head.
At the bottom of the steps, Ms Siemek became aware of a spotlight. The Applicant said, "There's the police, let's just tell them you fell down the stairs". Ms Siemek, "Yeah baby I won't tell them anything".
Two police officers then arrived at the scene. They observed Ms Siemek seated on the lower steps with the Applicant leaning over her. The Applicant said to the police, "She's pissed, she's fallen down the stairs, everything's fine". The Applicant told police he would get a towel and then walked to the side of the house and ran off into an adjacent nature reserve.
Police observed a number of injuries on Ms Siemek and made an urgent call for an ambulance. Whilst waiting, Ms Siemek told police that the Applicant had assaulted her.
The Applicant was located by police about 350 metres to the west of the house. During his arrest, the Applicant struggled with police. The Applicant was cautioned and yelled at police, "It was self-defence. She tried to stab me. It was a big fucking knife". He was interviewed and maintained that the victim had threatened him with a knife.
Ms Siemek was conveyed to the John Hunter Hospital where she was treated in the Intensive Care Unit until her discharge on 19 January 2015.
Ms Siemek suffered from a "blow out" fracture of the right orbital floor. There was extensive soft-tissue swelling to the right side of her face and scalp and a large right peri-orbital haematoma.
The victim suffered from multiple complex rib fractures to both sides of her chest. On her left side, there was a displaced fracture to the neck of the second rib. The third rib was fractured posteriorly. The fourth and fifth ribs were fractured in two separate places with significant displacement. Her seventh, eighth and ninth ribs were fractured laterally. On her right side, the second rib was fractured and displaced. The third and fourth ribs had irregularities which potentially indicated minor displaced fractures. There were displaced fractures to the sixth, seventh, eighth, ninth and tenth ribs.
The victim suffered a partial collapse of the lower lobe of the left lung. There was a small pneumothorax to both lungs. These were treated with the insertion of a chest drain.
In addition, the victim suffered multiple facial, scalp and anterior neck bruises around the area of the hyoid bone. She suffered bruising to the back and lower legs.
The sentencing Judge was informed and accepted that, as at 4 March 2016, the victim did not require surgical intervention and that the injuries had healed over time save for some residual soreness in the right arm.
Following his arrest on 10 January 2015, the Applicant remained in continuous custody.

[5]

The Applicant's Subjective Circumstances

As mentioned earlier, the Applicant was 36 years old at the time of the offences and nearly 38 years old at the time of sentence.
Reference has already been made to the Applicant's prior criminal history. In addition to the offences of domestic violence, the Applicant received a two-year good behaviour bond in the Sydney District Court in June 2011 for offences of cultivating a prohibited plant (commercial quantity) and supplying a prohibited drug. In 2012, the Applicant was sentenced to imprisonment for seven months with a non-parole period of four months for cultivating a prohibited plant. He was sentenced to concurrent terms of imprisonment in 2013 for possession of a prohibited drug and driving whilst his licence was suspended.
A report dated 26 February 2016 of Dr Sathish Dayalan, a consultant forensic psychiatrist with Justice Health and Forensic Mental Health Network NSW, was tendered at the sentencing hearing. This report was provided in response to a request from the District Court. Dr Dayalan diagnosed bipolar affective disorder and substance abuse disorder with the substances abused being cannabis and stimulants.
A presentence report dated 15 December 2014 prepared by Tracie McGregor, Senior Community Corrections Officer, was also before the sentencing court. Ms McGregor noted that the Applicant had been employed previously as an electrician, however due to his mental health issues, he had been on unemployment benefits and intended to apply for the disability support pension. Ms McGregor noted the Applicant's long history of cannabis use and steps which he had been taking by way of counselling and treatment in this respect. The Applicant had been diagnosed with bipolar disorder when he was aged 20 years and had a number of admissions to mental health care units and community treatment orders since then.
Also tendered at the sentencing hearing was a letter from the Applicant and a further letter indicating available employment for the Applicant with a roofing business. The Applicant's letter to the Court indicated that he was not medicated in the period between 22 December 2014 and 5 January 2015 when he was in custody, and in the five-day period before the commission of the offences on 10 January 2015.

[6]

Proceedings in the District Court

The sentencing hearing commenced before Hock DCJ on 3 March 2016.
On 3 March 2016, at the request of the legal representatives for the Crown and the Applicant, her Honour dealt with the Applicant under s 98 Crimes (Sentencing Procedure) Act 1999 for the breach of the bond forming part of the suspended sentence imposed on 5 January 2015 for the assault upon Ms Ryan on 15 August 2014.
The transcript of the sentencing hearing reveals the following discussion between her Honour and counsel for the Applicant immediately before sentence was passed (T6, 3 March 2016): "I should deal with the section 12 matter first, Mr Booth. Do you submit that there are special circumstances or not? BOOTH: No, your Honour, except I imagine it will be subsumed in whatever your Honour ends up doing. HER HONOUR: Well, the next sentence won't be totally cumulative but part of this sentence would have to be served. BOOTH: Yes. HER HONOUR: All right. Then just stand up, Mr Siemek, please. In terms of the section 98 matter, I revoke the bond. I set a non-parole period of nine months and a total term of 12 months imprisonment, both to date from 10 January 2015, the day the offender went into custody."
Submissions then proceeded with respect to sentence for the offences committed on 10 January 2015. In the course of those submissions, the Crown submitted (T13, 3 March 2016): "Your Honour, just in terms of the structure of any sentence, the Crown's position on that is that your Honour, of course, has already revoked the section 12 bond and imposed a sentence of 12 months with a non-parole period of nine months. The Crown's position is that there should, at least, be some element of accumulation when your Honour comes to sentence the offender. I think that's probably uncontroversial."
The sentencing Judge indicated that the likely approach would be that the sentence for the s 35(2) offence would be concurrent with the sentence for the contravention of the apprehended domestic violence order on 10 January 2015 which was designed to protect Ms Siemek (the s 166 certificate matter).
The Crown acknowledged that it would be within the sentencing Judge's discretion to make the sentences for those two matters wholly concurrent and counsel for the Applicant agreed with that approach (T 14-15, 3 March 2016).
Accordingly, the Crown had submitted that there ought be at least partial accumulation upon the sentence imposed for the assault offence, which had given rise to the suspended sentence, and no contrary submission had been made on behalf of the Applicant.

[7]

Some Findings in the Remarks on Sentence

After summarising the facts of the offences, the sentencing Judge observed that the Applicant "mounted a sustained and violent attack on the victim which resulted in serious injuries" before finding that the s 35(2) offence fell "at the mid-range of an offence under this section of the Crimes Act" (ROS 4).
Her Honour then said (ROS 4): "At the time that the offender committed this offence he was on a section 12 bond for an assault. It is an aggravating factor that he was at conditional liberty."
Her Honour turned to the Applicant's subjective circumstances, noting his history of bipolar affective disorder and substance abuse. Her Honour made the following finding which favoured the Applicant (ROS 4-5): "At the time of the offence it appears that the offender was in a manic state due to not being medicated. This seems to have come about for reasons not entirely attributable to him, as is borne out in the psychiatric report (exhibit C). On the material tendered, it does seem that there is a link between the offender's untreated mental health condition and his offence, which reduces his moral culpability. Because of his mental illness, the offender is not an appropriate medium for general deterrence. However, protection of the community is of increased importance."
A discount of 15% was allowed for the Applicant's plea of guilty which had been entered after the matter had been sent to the District Court. No complaint is made by the Applicant concerning this finding.
The sentencing Judge then turned to issues of totality and special circumstances (ROS 5): "Having regard to the principle of totality, this sentence will be partly cumulative on the sentence imposed for the breach of s 12 and will be taken to have commenced on 10 July 2015. Similarly, having regard to the principle of totality, the matter on the s 166 certificate will be served totally concurrently. I find special circumstances because of the partial accumulation of the sentence and because quite clearly the offender and the community will benefit from him having a longer period of close supervision on parole. I have had regard to the maximum penalty and the standard non-parole period for this offence. My reasons for not imposing the standard non-parole period have been outlined. The non-parole period to be fixed represents the minimum period the offender should spend in custody, having regard to all the elements of punishment, including the objective seriousness of the offence, denunciation and his subjective circumstances."
The sentencing Judge recommended that the Applicant engage in drug relapse prevention programs and anger management programs whilst in custody and directed that a copy of the report of Dr Dayalan accompany the warrant. Her Honour recommended, as well, that the Applicant be supervised strictly on parole, particularly with respect to his mental health issues.

[8]

Ground 1 - A Claim of Erroneous Double Counting Submissions of the Parties

Mr O'Donnell SC, for the Applicant, submitted that the sentencing Judge had fallen into error in the way in which the Applicant's breach of conditional liberty was treated. It was submitted that as her Honour had sentenced the Applicant for this matter on 3 March 2016 by way of the breach of bond proceedings, it was erroneous for the sentencing Judge to take into account as an aggravating factor for the offences committed on 10 January 2015 that the Applicant was subject to conditional liberty at that time.
The Crown submitted that no error had been demonstrated in this respect and that the course adopted by the sentencing Judge was open to the Court in the exercise of discretion. Decision
It was entirely appropriate for the sentencing Judge to deal with the breach of bond matter first given that the 15 August 2014 offence had occurred first in time. With the consent of the parties, the Applicant was called up for breach of the bond imposed on 5 January 2015 and her Honour imposed sentence as mentioned earlier (at [40]-[41]). To deal with this matter first was entirely consistent with the approach proposed in Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2 at 386-387 [23] and R v Dinh (2010) 199 A Crim R 573 [2010] NSWCCA 74 at 587-589 [81]-[88].
It should be kept in mind that in sentencing the Applicant for that offence, her Honour was considering an offence committed against a separate victim, Ms Ryan, in August 2014. Against the background of the Applicant's extensive history for domestic violence, the sentence imposed by her Honour for that offence was unremarkable. No challenge is made to that sentence in this Court.
At the time when the Applicant committed further offences on 10 January 2015, he was subject to conditional liberty as a result of the suspended sentence imposed five days earlier. Accordingly, it was appropriate for the sentencing Judge to take into account on sentence for the later offences the fact that the Applicant "was on conditional liberty in relation to an offence or alleged offence" at that time, so as to constitute an aggravating factor under s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999.
To have regard to this aspect as an aggravating factor on sentence for the later offences does not involve in any way a form of double counting with respect to the earlier offence.
In Porter v R [2008] NSWCCA 145, with the concurrence of Bell JA and McCallum J, I said at [86]: "… it seems to me that the purpose of s 21A(2)(j) is to capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour."
As s 21A(2)(j) itself makes clear, and as stated in Porter v R, "conditional liberty" may exist if a person is on bail (even if later acquitted of the offence) or if on a bond for an offence of an entirely different type to the offence committed in breach of conditional liberty.
The submission advanced for the Applicant under this ground is misconceived. It was clear that the Applicant was subject to conditional liberty by way of a good behaviour bond at the time when he committed the offences on 10 January 2015. In these circumstances, it was inevitable that the sentencing Judge would have regard to s 21A(2)(j) as an aggravating factor on sentence.
To the extent that there is some overlap between Grounds 1 and 2, I will consider the alleged error concerning accumulation in Ground 1 at the same time as addressing Ground 2.
I reject the first ground of appeal.

[9]

Ground 2 - Claim for Error in Partial Accumulation Submissions of the Parties

It was submitted for the Applicant that the sentencing Judge had fallen into error in the approach to accumulation with respect to the sentence imposed for the common assault in the breach of bond proceedings and the sentences imposed for the later offences. Whilst accepting that it was open to her Honour to consider partial accumulation, it was argued that there had been a breach of relevant principles concerning accumulation and concurrency of sentences.
The Crown submitted that no error had been demonstrated in this respect with her Honour exercising discretion to provide for partial accumulation of the sentences. Decision
At the outset, it is appropriate to observe that the argument advanced in this Court was not made before the sentencing Judge. As noted earlier, the Crown had submitted at first instance that there ought be a measure of accumulation as between the sentences imposed for the offences dealt with on 3 and 4 March 2016 (see [42]-[45] above). No contrary submission was made by the Applicant's counsel at first instance.
As Senior Counsel for the Applicant conceded at the hearing in this Court, he confronted the difficulty identified in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at 477-478 [75]-[82] where an attempt is made to advance an argument in this Court which had not been put at first instance.
In any event, no error has been demonstrated on the part of the sentencing Judge. The issues of accumulation, concurrency and totality were to be considered in the context of two separate offences of violence committed against different persons six months apart.
This Court has emphasised that accumulation is entirely appropriate where there are several victims of crimes of violence. A measure of accumulation is to be expected in the case of separate domestic violence offences committed against different victims: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at 203-204 [133]-[136].
In R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159 at 553 [108]-[109], this Court said: "108 The decision of this Court in Cahyadi v R [2007] NSWCCA 1; 168 A Crim 41 is referred to frequently with respect to the statement of principle concerning accumulation, concurrency and totality (at 47-48 [27]-[29]). It should be kept in mind that the offences in Cahyadi v R involved dishonesty, money laundering and passport offences, and not crimes of violence or sexual assault. There were no individual victims in that case to whom reference needed to be made. 109 This observation is not intended to dilute the statement of principle in Cahyadi v R. Rather, it is to provide a reminder that other considerations will be brought into play as well when issues of accumulation, concurrency and totality arise with respect to crimes of violence, including domestic violence (Vaovasa v R; Jeffries v R; R v Hamid) and sexual assault offences involving several victims (R v Brown; Doyle v R; R v Doyle). The observations in R v PFC at [58]-[63] should be read with these considerations in mind."
The sentencing Judge utilised partial accumulation as between the sentences to be imposed for these separate incidents involving different victims. This approach was entirely open to her Honour in the exercise of sentencing discretion. No error has been demonstrated in this respect.
I reject the second ground of appeal.

[10]

Ground 3 - Claim that the Overall Effective Sentence was Manifestly Excessive Submissions of the Parties

Whilst recognising the gravity of the s 35(2) offence, Senior Counsel for the Applicant submitted that, in all the circumstances of the case, the sentence imposed was manifestly excessive. It was submitted that this conclusion ought be reached after taking into account, in particular, the Applicant's history of mental illness and its role on sentence in this case.
The Crown submitted that the sentence was open to her Honour and that appropriate regard was had to all relevant factors. Decision
To succeed on the ground of manifest excess, the Applicant must demonstrate that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 370-371 [25].
This was a serious example of an offence under s 35(2) Crimes Act 1900. Undoubtedly, the victim was terrified throughout the incident and very substantial injuries were caused to her. This was an offence of domestic violence committed by an offender who was a recidivist in this class of offending, both as to the number of prior offences and the number of victims involved.
Ordinarily, the approach set out in R v Hamid at 195-196 [86] would apply to such a case: "In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important."
Further, the attack on the Applicant's former wife on 10 January 2015 was a breach of an apprehended domestic violence order which had been put in place to protect that victim from the Applicant. The Applicant was in direct breach of an order made to protect his former wife against actual or threatened acts of personal violence, stalking, intimidation and harassment: Browning v R [2015] NSWCCA 147 at [5].
In this case, however, her Honour made findings in favour of the Applicant by reference to his history of mental illness and the fact that he was in a manic state due to not being medicated at the time of the offences (see [48] above). This aspect served to ameliorate what would otherwise have been a more substantial sentence involving greater emphasis on general deterrence and denunciation.
Far from the sentence imposed in this case being manifestly excessive, I consider that it was a measured sentencing response which balanced the grave aspects of the case with the Applicant's subjective circumstances, whilst keeping in mind the protection of the community (including the Applicant's former wife and partner). The sentences, and the measure of accumulation utilised, were entirely open to her Honour in the exercise of sentencing discretion.
I reject the third ground of appeal.

Siemek v R

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Judgment (12 paragraphs)

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